Let Chaos Reign

Thursday

Dec 12, 2013 at 4:10 PMDec 12, 2013 at 6:41 PM

This is a time of year when a lot of lawyers (and other professionals) cram in their end of the year educational credits. (except not in Massachusetts, the sole state that doesn’t require continuing education of the bar) As part of my educational obligations in my other jurisdictions, I found myself in the middle of twelve way brawl about the constitutionality of the judges now being rammed through the Senate on a partisan vote by Senate Democrats. The question is whether these confirmations are legitimate, as even Reid admitted this morning that he views the role of Senate Democrats to rubber stamp nominees as his definition of advise and consent. If these confirmations aren’t legal, what are the consequences of what they are doing? Well, a handful of constitutional law professors were suggesting that orders they issue, decisions they render, verdicts they certify, lack certainty. Very quickly, we could end up with two classes of judges–those who legitimacy, and those without, with the very real and interesting question of what would happen, the shoe shifting to the other foot, if a Republican President in 2017 and a Republican Senate in 2017 deem those judgments as fraudulent, and appoint their own judges. Who’s going to sort that out. As another prof pointed out, the effect of the nuclear option extending to judges is almost certainly unconstitutional, as it threatens the independence of the judiciary. What’s going to happen the first time someone appeals a criminal conviction on the grounds that the judge wasn’t properly confirmed, and it gets decided by a partisan Republican bench? Or when someone appeals a property decision on the grounds that a judge’s signature is not valid? We may be heading for a constitutional crisis in which we have two judiciaries, side by side, leaving the Supreme Court, maybe, maybe not, to sort it out. Point is, the nuclear option may have seemed like a good idea to Reid, but now we have a whole new front in the culture war to fight about. nice job.

Rob Meltzer

This is a time of year when a lot of lawyers (and other professionals) cram in their end of the year educational credits. (except not in Massachusetts, the sole state that doesn’t require continuing education of the bar) As part of my educational obligations in my other jurisdictions, I found myself in the middle of twelve way brawl about the constitutionality of the judges now being rammed through the Senate on a partisan vote by Senate Democrats. The question is whether these confirmations are legitimate, as even Reid admitted this morning that he views the role of Senate Democrats to rubber stamp nominees as his definition of advise and consent. If these confirmations aren’t legal, what are the consequences of what they are doing? Well, a handful of constitutional law professors were suggesting that orders they issue, decisions they render, verdicts they certify, lack certainty. Very quickly, we could end up with two classes of judges–those who legitimacy, and those without, with the very real and interesting question of what would happen, the shoe shifting to the other foot, if a Republican President in 2017 and a Republican Senate in 2017 deem those judgments as fraudulent, and appoint their own judges. Who’s going to sort that out. As another prof pointed out, the effect of the nuclear option extending to judges is almost certainly unconstitutional, as it threatens the independence of the judiciary. What’s going to happen the first time someone appeals a criminal conviction on the grounds that the judge wasn’t properly confirmed, and it gets decided by a partisan Republican bench? Or when someone appeals a property decision on the grounds that a judge’s signature is not valid? We may be heading for a constitutional crisis in which we have two judiciaries, side by side, leaving the Supreme Court, maybe, maybe not, to sort it out. Point is, the nuclear option may have seemed like a good idea to Reid, but now we have a whole new front in the culture war to fight about. nice job.